CHARLESTON – Kanawha County Board of Education members want the West Virginia Supreme Court of Appeals to award them a bigger share of state school aid.

They complain that their entire tax levy counts against them in the state aid formula, even though they must channel part of the levy to the county library.

They asked the Justices to overrule Kanawha Circuit Judge Charles King Jr., who rejected their claim against the West Virginia Board of Education last year.

The Justices plan to hear oral arguments Wednesday, Nov. 1.

In nine of West Virginia's 55 counties, school taxes flow to libraries under special acts of the Legislature.

Kanawha County Board of Education attorney Taunja Willis Miller, of Jackson Kelly in Martinsburg, argues that the Legislature denied those counties equal protection under the laws in violation of the West Virginia Constitution.

For the state Board of Education, Attorney General Darrell McGraw responds that the Legislature intended to count the library tax in the aid formula.

Managing deputy attorney general Barbara Allen also points out for McGraw that the county board of education has plenty of money.

She told Justices the board "is able to provide salary supplements to the teachers and to carry over surplus every fiscal year ranging from $6,000,000 to $13,000,000."

The pleadings of the parties do not specify how many dollars Kanawha County schools would receive if the board excluded the library's portion.

In 2002-03, the board remitted $2,209,600 of its regular levy to the Kanawha County Public Library. In 2003-04 it remitted $2,228,070.

In November 2003, the board filed a complaint for declaratory judgment and injunctive relief in Kanawha County circuit court.

The West Virginia Board of Education filed a cross motion for summary judgment. King granted it in an order last Dec. 9.

King declared that he lacked authority to adjust the aid calculation.

The county board of education appealed the order Aug. 3.

Miller wrote that the West Virginia Constitution obligates the state to support equal opportunity for thorough and efficient education.

She wrote that "fictitious inflation" of the levy resulted in diminished aid in past years and would result in diminished aid in the future.

She wrote, "…it is actually irrelevant whether the Kanawha Board has had sufficient financial resources to provide an opportunity for a thorough and efficient education to Kanawha County public school students."

For the state board, Allen responded that a bill to adjust the formula for counties with library levies died in the Legislature in 2000 and 2002.

She wrote that the county board of education "is providing a thorough and efficient education to Kanawha County's students."

In a Sept. 29 reply, James Brown of Jackson Kelly wrote that Allen tried to divert the Court's attention away from the constitution.

He wrote that she "miraculously converts the resultant discriminatory classification in the financing of a fundamental constitutional right to a merely economic issue."